EU ANTITRUST: HOT TOPICS & NEXT STEPS

EU ANTITRUST: HOT TOPICS & NEXT STEPS 2022

Prague, Czechia

The collective agreements concluded by solo self-employed persons with counterparties of a certain economic strength belong to the second category of collective agreements. The general principle is a clear imbalance in bargaining power of a solo self-employed person compared to the counterparty. The counterparty/ counterparties therefore must represent the whole sector or industry and its/their annual aggregate turnover exceed €2 million or the staff headcount is equal or more than 10 persons. Such agreements on the one hand are not excluded from the application of Art. 101 TFEU, on the other hand the Commission commits itself not to taking action against them. In addition, this category includes also the collective agreements concluded by self-employed persons pursuant to national or EU legislation (for instance, sectoral exemption from national competition law or a right of collective bargaining granted by the Member State to a particular category of self-employed person). Finally, as for the scope of collective agreement, the guidelines are generally applied to collective negotiation, a “strike” of solo self-employed persons (a collective decision not to provide services under specific conditions) and generally to agreements concluded between undertakings concerning the working conditions of the solo self-employed persons. Such an agreement may include the remuneration of solo self-employed persons, health and safety insurance but not the end prices for the end-user (consumer). In the sense of above-mentioned guidelines, there is a question of how the national Competition Authority will proceed. Will they be inspired by the Commission guidelines? Or not? Will they wait for the first national courts judgments on this matter or legislative explicit exception? From the perspective of low bargaining power, the scope of the right to bargain collectively and the possibility to include small companies - for example, one member companies such as one-member LLC (“s.r.o.”) that are common in taxi services in the Czech Republic could also be discussed, as their position may also be comparable to a solo self-employed person. It is also discussable if a special national regulation of collective bargaining for self employed persons should be adopted or to apply the existing one, in particular the Czech Act No. 2/1991 Sb., on collective bargaining. Due to the transnational operation of some counterparties (esp. some platform providers), certain unification of this procedure across the EU countries should also be considered. In any case a special law should be adopted that reflects the specifics of the business relationships of the solo self-employed, flexibility, but at the same time provides coveted protection for the solo self-employed. The negotiation of the collective agreement should be also concerned – especially the conditions that need to be met before a “strike”. As Katsabian emphasises in the case of platform based workers, the mediation between a platform and platform-based workers

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